K.D.ANPAT Vs. STATE OF MAHAEASHTRA

JUDGEMENT

(1.) THIS petition Under Article 226 of the Constitution takes exception to the refusal of respondent 3 to permit unto the petitioners the assistance of Legal Practitioners of their choice in the conduct of their defence in the enquiry scheduled before him.

(2.) PETITIONERS were allegedly on a patrol on the night between 26 and 27 October 1983. At about 22.00 hours on the Chembur -Trombay Highway, they intercepted a motor vehicle bearing registration No. MTL 1849. At the driver's seat was one Laxman Datta Jadhav and the other occupants were a Cleaner, Laxman Deokar, his wife Nirmala and a child. The car Along with its occupants was taken to the office of the D. C. B. C. I. D., Zone V at Ghatkopar. Driver Jadhav and the Cleaner were detained at the office. Nirmala and the child with her were taken to their residence at Parel, Bombay by the petitioners, who forced the lady to open her house. Petitioners broke open a wooden cupboard and removed all the cash they could lay their hands upon. Next, they visited a refinery shop owned by Laxman Deokar's brother Baburao and from that shop removed about Rs. 15,000/ - without drawing of a panchanama showing an attachment thereof. The leader of the posse, petitioner 1, demanded a sum of Rs. 2 lakhs as illegal gratification from Baburao Deokar. The besieged family together with their servants were detained till about 7 a.m. on 27 October 1983. Baburao Deokar lodged a complaint with the then Cheif Minister of State Government and thereupon began an enquiry conducted by various officers including an Assistant Commissioner of Police and an Additional Commissioner of Police. Petitioners were suspended on 10 January 1984 and the said suspension came to be revoked on November 14, 1984. A charge sheet was served upon them ascribing to them acts of Misconducts amounting to offences punishable under sections 342, 347, 348, 395, 217, 116, 161 and 120 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act. The charge -sheet was accompanied by a statement of allegations and respondent 3 was assigned the task of conducting the departmental enquiry. By two applications which are at Exhs. D & E - being accompaniments to the petition compilation - the petitioners sought the permission of the Enquiry Officer to permit Legal Practitioners of their choice to represent them before him. The applications Recited: -

(3.) THE rigour of Rule 24 has been Considerably relaxed by the Circular of 1961. Even in that rule there was no unqualified bar against a delinquent being represented in a departmental enquiry by a Lawyer. All that the rule said was that it was not "permissible for pleaders" to appear on behalf of Police Officers in a departmental enquiry. Impermissibility may be directory or mandatory in nature. Here the rule itself makes it clear that the Lawyer can be engaged for drafting a written statement in answer to a charge -sheet served upon a delinquent Next, appearance of a friend to defend the delinquent is permitted and the object of this, according to the rule itself is "to minimise any hardship". Of course, the permission to employ a friend is also dependent upon the discretion of the Officer conducting the enquiry. This however does not mean that the Enquiry Officer can act in any manner he likes. The requirement of the rule is that he acts in consonance with the principles of fairness and natural justice. Provided the delinquent is not likely to be able to represent his case properly, the Enquiry Officer has to permit the employment of a friend to defend the delinquent The note to the rule carries a caution against permitting the delinquent to employ trouble -makers as friends. It appears that the caution is against permitting the use of such persons whose real object is not to defend the delinquent but to cause vexatious delay in the carrying out of the enquiry. Considered as a wholes, the rule directs the Enquiry Officer to act reasonably. He is enjoined to see that no unreasonable impediment arises in the expeditious disposal of the enquiry. At the same time, the delinquent has to be given a fair opportunity so that he is not hindered in meeting the case initiated against him. The rule was misunderstood and that necessitated the issue of 1961 Circular. This made it clear that there was no "absolute prohibition" against allowing Legal Practitioners on either side. In other words, Legal Practitioners could represent the accusator agency as also the delinquent The delinquent had to have an adequate opportunity to defend himself. If the case was complicated or difficult or the person facing the charge was likely to be embarrassed, he was to be permitted legal aid. It is in this light that the claim of the petitioners for engaging Legal Practitioners of their choice to defend them in the enquiry, has to be appraised.